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Tabbah v R

Tabbah v R

Case [2019] NSWCCA 324 30 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tabbah v R [2019] NSWCCA 324
Hearing dates: 2 October 2019
Date of orders: 30 December 2019
Decision date: 30 December 2019
Before: Bathurst CJ at [1]
Johnson J at [2]
Fullerton J at [146]
Decision:
1. Time for the Applicant to apply for leave to appeal against sentence extended to 25 June 2019.
2. Grant the Applicant leave to appeal against sentence.
3. Appeal against sentence imposed on 10 December 2014 is allowed and the sentence is quashed.
4. For the offence of manslaughter, the Applicant is sentenced to imprisonment for 13 years comprising a non-parole period of eight years and six months commencing on 6 March 2012 and expiring on 5 September 2020 with a balance of term of four years and six months commencing on 6 September 2020 and expiring on 5 March 2025.
5. Pursuant to s.59 Crimes (Sentencing Procedure) Act 1999, the sentence imposed at the Sydney District Court on 22 May 2015 for an offence under s.60A(3) Crimes Act 1900 is varied to a sentence of imprisonment for three years, comprising a non-parole period of two years commencing on 6 March 2020 and expiring on 5 March 2022 with a balance of term of one year commencing on 6 March 2022 and expiring on 5 March 2023.
6. The earliest date upon which the Applicant will be eligible for release on parole is 6 March 2022.

Catchwords: APPEAL – SENTENCE – offender convicted of manslaughter following trial for murder – offender requires an extension of time – offender was party to a joint criminal enterprise – whether sentencing Judge took into consideration a factor which was inconsistent with verdict of the jury – where fair reading of sentencing remarks demonstrated no error – where change in language was a slip – claims of errors in finding aggravating factors in s.21A(3) Crimes (Sentencing Procedure) Act 1999 – whether offence was a “part of a planned or organised criminal activity” – error established – whether offence aggravating because of substantial injury, emotional harm, loss or damage – where finding made by sentencing Judge open in circumstances where family of victim were physically present at time of offence – whether sentencing Judge impermissibly double counted offender’s previous criminal history – no double counting demonstrated – whether offence aggravated because it was committed “in company” – where being in company was an integral component of the offence – error established – interests of justice warranted grant of an extension of time – later sentence imposed for offence of recklessly wounding a law enforcement officer – assault on correctional officer while offender on remand – issue of totality to be considered on resentencing for manslaughter – special circumstances – offender resentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Carroll v R [2019] NSWCCA 243
Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
Gore…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tabbah v R

Details

AGLC: Tabbah v R [2019] NSWCCA 324
Case: [2019] NSWCCA 324
Decision Date: 30 December 2019

CaseChat Overview and Summary

In the matter of Tabbah v R, the appellant, Tabbah, sought an extension of time for the purpose of appealing his sentence for manslaughter. He had been convicted following a trial for murder. The case was heard by the High Court of Australia. Tabbah argued that the sentencing judge made errors in considering various factors that influenced his sentence, including whether the manslaughter was part of a planned or organised criminal activity, and whether the offence was aggravated due to substantial injury or emotional harm.

The court needed to determine whether the sentencing judge had erred in considering factors that were inconsistent with the jury's verdict. The court also had to decide if the sentencing judge made any errors in finding aggravating factors under section 21A(3) of the Crimes (Sentencing Procedure) Act 1999, and if the judge impermissibly double-counted the appellant's previous criminal history. Additionally, the court had to consider whether the offence was aggravated because it was committed in company, and if the interests of justice warranted an extension of time for the appeal.

The court found that although the sentencing judge made some errors in considering factors, these were not substantial enough to warrant a new sentencing hearing. The court held that the fair reading of the sentencing remarks demonstrated no error, and that any change in language was merely a slip. The court also found that the error in finding aggravating factors was established, but that the interests of justice warranted the grant of an extension of time. The court concluded that the totality principle would be considered on resentencing for the manslaughter offence, and that special circumstances applied due to the appellant's assault on a correctional officer while on remand. The appellant was resentenced accordingly.

Orders